
Class 
Book- 



COPYRIGHT DEPOSIT 



/ 



THE PATENT OFFICE 



AND 



THE PROBLEM OF REFORM 



^' f BY 



JAMES A. WHITNEY, LL. D., 

Counselor at Lazu. 



WITH A IV APPENDIX OF PRACTICAL ADVICE TO 
INVENTORS AND PATENTEES. 

0.3 1 ^ __^ ^ 



BY THE SAME AUTHOR I 



In Preparation. 

Rights and Privileges of Manufacturers under 
State and National Trade Mark Laws. 



ISSUED FROM 

United States and Foreign Patent Agency Offices, Rooms 430 and 431, Temple Court, 
cor. Beekman and Nassau Streets, New York City. 



Applications for Patents in all countries where Patents are granted ; Registration of Trade Marks 

in all countries where Trade Marks are registered ; and all business in the United 

States Patent Office prosecuted with thoroughness and dispatch. 



'1\ 



CorvRiGHT, 1896, liY James A. Whitney. 



ANNOUNCEMENT. 

On or about July ist, prox., the first number of a monthly periodical devoted to 
the consideration of patent, trade mark, and copyright interests, will be issued 
from the office of publication of this monograph. 

Rooms 430 and 431, Temple Court, 

New York City, U. S. A. 












PREFACE. 



This brochure is the result of more than thirty years' familiarity 
with the practice and procedure of the Patent Ofhce and the law as 
applicable thereto. While it goes without saying that a subject 
which relates so directly to the industrial welfare of the country 
should be considered in a temperate and judicial manner, it by no 
means follows that convictions born of accurate knowledge, and 
fostered by long and careful reflection, should not be forcibly 
expressed. The keynote to the following pages is found in the 
propositions that inventors are benefactors of the human race, that 
civilization in all its better aspects has become what it is through 
their efforts ; that the law of patents is based upon justice as pro- 
motive of the public welfare ; that inventors go before the Patent 
Office as a matter Of right, and not as a matter of favor ; that what- 
ever, in the practice of the Patent Office or in its administration of 
the law, discriminates against the true interests of inventors should 
be reprobated and reformed ; and that defects in the law itself 
should be remedied by legislation so firmly and so clearly expressed, 
that error in its interpretation or mistake in its application may 
become practically impossible. 

The appendix comprises suggestions which, it is thought, may, even 
to experienced inventors, be of some value ; but which are more 
especially intended for the guidance of those who are novices in 
threading the useful paths of industrial and scientific improvement. 
While the Patent Office falls short, in many ways, of ideal perfection, 
it is not to be denied that its work would be materially facilitated, 
and justice to applicants be greatly promoted, if inventors them- 
selves were, as a rule, more systematic in the development of their 



—4:— 

ideas, and more attentive to legal requirements and to rules of 

practice in the presentation and prosecution of their cases. It is for 

the purpose of inciting to effort in this direction that the appendix 

has been prepared for perusal in connection with that larger portion 

of these pages which relates to modification of the patent law, and 

reform in the organization of the patent office. 

James A. Whitney. 
Temple Court, New York City 
J tine, 1896. 



THE PATENT OFFICE AND THE 
PROBLEM OF REFORM. 



The Moj'al and Legal Rights of Inventors. 

The patent law of the United States rests upon piositive statute. 
Its administration does not depend upon an inherent power of the 
executive, as was originally the case under English law. 

The moral right of an inventor to a patent is based upon a primary 
principle of justice, viz.: that if he gives the public a valuable 
improvement, the public ought to pay him for it ; and upon the 
simple business principle that the easiest way for the public to pay 
him is to let him have the chance to make as much out of it as he 
can by its exclusive manufacture, sale, and use for a limited time. 
In ethics, this is all that there is of the law of patents. It is enough. 
It is primitive justice and simple common sense. 

The legal right of an inventor to a patent rests, as just remarked, 
upon enacted law. The public has clothed the government with 
the power to grant patents. This power is embodied in a paragraph 
of the Constitution, and has been effectuated through a succession 
of statutes which extend, in this country, over a period of more than 
a hundred years. Through them, as by a process of evolution, our 
present system, with all its merits and demerits, has been formulated. 
The law has been changed from time to time to remedy deficiencies, 
real or imagined. In some respects it has been improved, in others 
it has retrograded. The law, as it stands upon the pages of the 
Revised Statutes of the United States, is upon its face fair toward the 
inventor and just toward the public. 

The Patent Office is, in theory, an ideal institution. The law, as 
understood and administered, is composed of the written statutes, 
their interpretation by the courts, and the understanding of that 
interpretation by the officials of the Patent Office. By the time the 
law gets around to the inventor, the latter not infrequently laments 



—G— 

the mysterious dispensations of jurisprudence when filtered through 
the aggregated mentalities of a government bureau. 

In its practical results upon inventors and inventions, and con- 
sequently upon industries, our patent system, which has sometimes 
been asserted to be the best in the world, is in many respects the 
worstj! It is doubtful whether there is another civilized country 
which assumes to reward its inventors, where the rights of the latter 
are so restricted by formalism, red tape, and the arbitrariness of 
unchecked authority.' That this is true is primarily due to the 
system of examinations in the Patent Office ; to the opportunities for 
irresponsible action on the part of Examiners, and to the dispropor- 
tion between the work to be done and the force available to do it. 

To afford a fair idea of this, it may be worth while to note the 
usual experience of an application before the Patent Office. In so 
doing we assume the application to have been properly prepared, its 
specification sufficiently lucid, its claims definite and clear, its draw- 
ings sharply defined, and its formal papers correct.* All these go 
in the first instance, to officials whose duty it is to see that all are in 
proper form. It sometimes happens that an unnecessarily technical 
point is here raised, but usually there is no trouble at this initial 
stage, provided, of course, that the applicant has properly complied 
with the reasonable statutory and official rules. 

Inventions, under the classification adopted in the Patent Office, 
are divided into classes, ^yhich in their turn are divided into sub- 
classes. Each division includes a class, and is placed under the 
control of a primary or, as he is sometimes termed, a principal 

* Examiners may, and should, insist that applications be drawn with due regard 
to the rules of the Patent Office, and in such manner as to clearly disclose the inven- 
tion and define what it is. It is not to be denied that the labor of Examiners 
would be materially diminished, the character of their work enhanced, and, it may 
be, their judicial discretion exercised wiih less asperity, if they were not so much 
annoyed by carelessness and incompetence displayed in the preparation of many of 
the cases brought before them. There are probably thousands of applications 
filed every year in which the slip-shod work of the specification-writer places a 
heavy tax on the time and patience of the Trimary Examiners and their assistants. 
How this may be rectified is a subject entirely distinct and apart from that con- 
sidered in the text. Every statement and reference comprised in the latter is to be 
understood as relating only to cases in which reasonable care and competent attain- 
ments have been brought to bear in the preparation of specifications, claims, draw- 
ings, and formal papers, and in which the applications have been filed in exact 
accordance with the rules of law and practice. 



-7- 

Examiner. The latter has several assistants. When the application 
has been found to be regular in form, and the first government fee 
has been paid, the case is sent to that Examiner who has charge of 
the class of inventions to which the Improvement relates, and whose 
duty it is to examine it upon the merits, and to cite any previous 
machine, process, composition, or other matter, which in his judg- 
ment should prevent the allowance of the claims. The matters thus 
referred to by the Examiner as against the application are termed 
"references," in the current phrase of the Patent Ofhce. 

After a delay which varies with the different divisions, the applica- 
tion is reached "in its order" for examination. It is precisely at 
this point in its existence that the vicissitudes of the application are 
likely to begin ; where often are initiated experiences which make 
the inventor sigh, and not infrequently lead the patent attorney to 
vigorous expressions of discontent. 

Opportunities for Unjustifiable Treatment of Inventors under the 

Present System, 

The Akhoond of Swat is not more absolute within his renowned 
dominion than is a Primary Examiner in control of a division who 
chooses to place his own notions ahead of his official duty. There 
is, in fact, no functionary anywhere (with one solitary exception, that 
exception being an "Assistant Exarainer-in-charge) " who is liable 
to be afflicted with so altitudinous a consciousness of personal exalta- 
tion, or through whom this weakness of human nature may do more 
harm. He may reject an application upon an alleged reference which 
has nothing to do with the case, and when the applicant has care- 
fully demonstrated this, he may repeat his action, with the result of 
compelling an appeal, with additional expense, to the Board of 
Examiners-in-Chief. If overruled by the latter, he may "discover " 
a new reference which has been " accidently overlooked," and reject 
the case again, thus placing before the applicant the alternative of 
further appeal and additional outlay, or of abandoning his applica- 
tion altogether. He may embarrass an application by absurd verbal 
criticisms, which the applicant or his representative is expected to 
meet with an aspect of submissive deference and grave respect,* or 

* This expectation is, however, occasionally the source of disappointment to an 
Examiner. Before the Patent- Oftice, a clear understanding of the subject, on the 



—8— 

may make requirements not expected nor required b)' other 
Examiners, and which may be futile upon their face, and may be 
irremediable in their results, and which cause annoyance and delay. 

Cases are not unknown where applications that, with proper regard 
to the rights of the inventor, could have been passed to issue in two 
or three months, have been kept dangling before the Patent Office 
for as many years, and this, by the manifestly intentional perversity 
of an Examiner. 

An Examiner may do all this, and there is practically no remedy 
for it. He may do even worse than this, and equally without repara- 
tion. He may allow the application, when, in fact, there is an avail- 
able reference which should defeat it, and which renders the patent 
invalid if granted. The time devoted to technicalities by an 
Examiner is, of course, just so much abstracted from that available 
for legitimate work, and an official who devotes his energies to 
obstructing the just claims of inventors, is commonly of too small a 
caliber to be able to do much else. Under the present system, there- 
fore, an ill-disposed Examiner not only has it in his power to deny 
rights to those who are entitled to them, but is also likely to accord 
rights to those who have no lawful claim to them. It is no benefit 
to an inventor to receive a patent which is clearly anticipated in 
the prior state of the aft. Such a patent is a delusion and a snare, a 
trap to the patentee, and a wrong to the public. 

The writer is informed, but has no personal familiarity with the 
affair, that one Examiner, a " first Assistant," has kept a regular 
list of those attorneys who have offended his sense of personal 
importance with the avowed object of revenging his egoistic ani- 
mosities by his official action. 

It is easy to perceive that a system in which such a condition of 
affairs is even possible, must be repugnant to all proper ideas of 
administrative justice, and must afford opportunities for many and 
great abuses. 

It is not to be assumed that all, or a majority, of the Examining 
corps are of the offensive type, above indicated. A very large 
majority of the Examiners are men who desire to do justice to 
inventors without doing injustice to the public. But it should be 

part of the applicant or his representative, a firm and judicious insistence in the 
assertion of apparent rights, and a careful regard for legal requirements and 
official proprieties, are the foundations of success. . 



—9— 

sufficient to condemn the present system that possibilities such as 
have been referred to actually exist. "When it is considered that 
the expense of an Appeal from an erroneous action of a Primary 
Examiner necessitates not only delay, but also the expenditure of a 
government fee, and, usually, an extra attorney fee, the hardship of 
a wrongful decision by a Primary Examiner is at once apparent. 
Ordinarily an appeal may be considered as practically doubling the 
expense of applying for a patent. Very frequently, too, the action 
of an Examiner leads an inventor to so modify his claims as to 
avoid clashing -^vith an objection urged by the Examiner, even 
though it may unduly narrow the patent when issued, and thus 
afford immunity to those who may invade the invention without 
infringing the claims. The extent to which this has been carried 
may be inferred from the number of reissues granted during the 
period when reissues were regarded with favor, a period which 
covered about forty years. In nearly every instance the reissue was 
sought for the purpose of broadening the claim beyond what had 
been originally allowed by the Patent Office, and the allowance of 
the reissue was evidence that this was the case. They numbered 
upward of ten thousand. There is no reason to suppose that the 
ratio of patents which cover less than the inventor is entitled to is 
any less at the present time. 

A further evil result of the present system arises from the fact 
that whatever an Examiner chooses to assert against an invention, 
no matter how futile or erroneous it may be, goes into the record 
of the application for permanent preservation. This record may 
thus be made to contain practically all the material for a ready- 
made brief in behalf of an infringer of the patent, the record being 
open to public inspection as soon as the patent has issued. It is 
thus possible for an Examiner to blacken a patent in advance, and 
for this blackening to remain as long as the patent exists. This, of 
course, may in many cases imp; the value of the patent, even 
when the Examiner's theory and objections have been totally over- 
ruled within the Patent Office, and the patent issued over his head 
and in spite of him. Another defect of existing law and practice 
lies in the fact that there are no adequate means by which an 
obstinate or perverse Examiner can be compelled to properly 
respect the decisions of the Appellate Tribunal, beyond the specific 
case in which his action has been reversed. It is true that an 



—10— 

Examiner is commonly chary of directly colliding with a decision 
or a rule of practice established by the Commissioner in person. 
But an Examiner of the type indicated has frequently a decided 
talent — it may be the only one he possesses — of drawing minute and 
evasive distinctions, which afford color of keeping within the letter 
of the decision or of the rule, as the case may be. Even in instances 
where these are clearly disregarded, the chances are that the matter 
may not come to the personal knowledge of the Commissioner. As 
concerns reversals of an Examiner's decision by the Board of 
Examiners-in-Chief, an Examiner may have been overruled by this 
tribunal in a dozen different cases involving the same principle of 
practice or interpretation. He is compelled to respect the decision 
of the Board in each of them, but there is nothing to prevent him 
from disregarding their authority as precedents in the very next 
case that comes before him. As if to accentuate the enforced sub- 
mission of an applicant to the arbitrary decrees of a Primary 
Examiner, the statute provides that no appeal can be taken to the 
Board until the claim has been twice acted upon by the Primary 
Examiner. It may be perfectly apparent to the applicant that the 
Examiner will persist in his action. Nevertheless, he must ask for a 
further consideration. There is no reason for this in justice or equity. 

When we consider the almost colossal value of some inventions to 
the public, the beneficent intent of the statute to afford complete 
protection to meritorious inventors, and the extent to which the 
fortunes of the latter depend upon proper recognition of their 
claims, it is apparent that the power and authority of a Primary 
Examiner over the rights of applicants is greater than ought to be 
confided to any one official where it is at all possible to avoid it. 

And more than this I The system of Examination is the same 
now as thirty years ago. There are conceded objections to which, 
thus far, in these pages no allusion has been made. These were set- 
forth in cogent terms as long ago as 1872 by the then Commissioner 
of Patents. Among other things he said : 

" There being no authoritative review of the work of the 
Examiners, there is no protection against hasty and careless 
examinations, and, what is still worse, the door is thrown wide open 
to incessant importunings and to corrupt influences of every kind." 

After disclaiming any suspicion as to the personal integrity of 
any Examiner, he continued as follows : 



—11— 

"The present corps consists of men of high character and ability, 
but I deem it unnecessary and unwise that interests of such impor- 
tance should be thus exposed, resting solely upon the integrity of a 
single officer. Very large amounts are often involved in these 
decisions. Dishonest applicants, it may be presumed, are ready to 
pay very liberally for patents when they cannot get them without, 
and outside parties adversely interested can often afford equal 
liberality to secure final rejections." 

Apparently believing that even this strong language did not ade- 
quately cover the facts relative to the system, the said Commissioner 
continued as follows : 

" The present organization furnishing no certain check to such 
fraud, and the Commissioner having no basis but the established 
integrity of the Examiners upon which to deny its existence, cor- 
ruption is freely and almost daily charged, and by many fully 
believed. The consequence is that the value of preliminary exami- 
nations IS seriously affected, and public confidence in the validity of 
patents is much less than it should be. It is doubtful whether in 
any other bureau or department of the Government equal interests 
are intrusted to the examination and final decision of a single per- 
son, with practically no check against carelessness, ignorance, and 
fraud." 

Such was the deliberate language of a Commissioner of Patents, 
speaking in his official capacity, and with a vigor of expression un- 
usual in official reports. Comment appears to be entirely unneces- 
sary, and the necessity of reform in the interest of the public to be 
apparent beyond a peradventure. '^Ff-acHcally no check against care- 
less?iess, ignorance, and fj^aud.'' Such was the characterization of 
this system twenty-four years ago by the head of the Patent Office. 
The system has not been changed since then. It would be 
futile to inquire why there has been no change. It is high time 
that the inventors and manufacturers of the country roused them- 
selves to see to it, that a change is made, and, that right speedily. 

A^o Remedy Except by Radical Modification of the System. 

While, as has just been implied, the obstacles thrown in an 
inventor's way may be, and not infrequently are, due to arbitrary 
and unjustifiable disregard of his rights by Examiners, such 



— 12— 

examples are paralleled by those arising from conditions which 
practically inhibit Examiners from that full and careful per- 
formance of their duties which is contemplated by the law, and 
which the inventor has a right to expect from the Government. 
This may be best illustrated by an example recently arising in the 
practice of the writer, who filed charges against an Examiner for 
neglect in failing to cite all the references relied upon in rejecting 
an application before an Appeal was taken, and for disregarding an 
argument which would have shown the Examiner that he was in 
error concerning a reference. In justification the Examiner replied, 
referring to the charges (the italics are ours), as follows : 

" The first ground is in not citing the best references in rejection 
of the case.* This the Examiner acknowledges to be the case, and did 
so on the record. Applicant's attorney goes on at length to 
descant on a certain argument filed by him which he claims would 
have clearly shown the Examiner his error. No doubt this is true. 
The attorney has been practicing long enough before the office to 
know that a principal Examiner, having six assistants, and having an 
average of six hundred cases a viortth reported to him, cannot per- 
sonally read arguments in these cases. He must depend for the 
proper presentation of the case upon his assistants." 

In another part of his' reply addressed to the Commissioner, the 
Examiner said : 

" Your Honor is perfectly familiar with the amount of work we 
have, and applicant's case has not been delayed any more than 
anybody else's. It was taken up in its due order. I wish further 
to state in this connection, but for the attorney's benefit, that for 
some time past I have been working overtime, doing work at home, 
in order that the work should not fall into arrears. Probably, upon 
learning this, the attorney will be more lenient in his judgment, 
both as to the mistake and the lapse of time." 

It appears from this that an argument which would have shown 
the Examiner his error was ignored entirely. It will, probably, not 
be denied that it was the proper business of some person to read 
and to understand the argument which was filed in behalf of the 
inventor, and which was directly responsive to the Examiner's action 
in the case. Yet the Patent Office admits that the Primary 

* The Examiner's grammar, it will be noticed, is a little shaky. This, however, 
does not detract from the value of the evidence afforded by his statement. 



—13— 

Examiner, who was responsible for the proper conduct of the 
examination, did not read it, and by reason of the pressure of work 
upon him could not be expected to read it. It does not appear 
that any of his assistants did read it. No matter what the cause 
or explanation of this, it is not open to question that no such occur-, 
rence ought to be possible in the examination of an application. An 
inventor is entitled to treatment quite different from this when he 
comes before the Patent Office to ask for protection under the law. 
In the case mentioned, the statement of the patent official amounts 
simply to this : that the Examiner responsible for that division 
could not attend to the examination of the case, but was compelled 
to leave it to an assistant, and that the latter paid no attention to 
the argum.ent. It further appears from the Examiner's statement 
that this was a direct, logical, and almost inevitable outcome from 
the system itself. When the system permits such things to happen, 
the system should be changed. 

A Primary Examiner, with six assistants, is required to act upon 
six hundred cases per month. Let us do a little arithmetic in tliis 
connection. Counting twenty-six working days to the month, six 
hundred cases per month are more than twenty-three cases per diem. 
Assuming, that, as implied by the Primary Examiner's phrase, his 
time is substantially occupied with the general supervision of his 
class, these twenty-three cases must be handled by the six assistants. 
This is practically four cases to each assistant each day. The work- 
ing hours of the Patent Ofifice are from 9 a. m. to 4 p. m., or seven 
hours per day. This affords less than two hours of one person's 
time to each case. Under the circumstances the Examiner's excuse, 
us an excuse^ was not unreasonable. It may weigh in behalf of the Ex- 
aminer, but cannot justify the system. Under conditions like those 
referred to, the wonder is, not that conclusive arguments are disre- 
garded and erroneous actions given, but that chaos, wrong end fore- 
most and upside down, does not reign from one end of the Patent 
Office to the other. Few men, however capable or however willing, 
can go on day after day under pressure such as is indicated in this 
Examiner's statement, and continue to do sound, careful, judicial, 
and discriminating work during long periods of time. That an 
Examiner, in order to keep up with his official work, should be com- 
pelled to work overtime, to do work at home, is a flagrant imposition 
upon the official, a detriment to the public service, and, as in the 



—14- 

instance just mentioned, the remote source of annoyances and delays 
to inventors, which are directly contrary to the intent and spirit of 
the law. The fault, it is manifest, is tnhere?it in the present system of 
Examination, and the remedy is to be found only in a radical modi- 
fication of the system itself. 

Some, not wholly familiar with the subject, may be inclined to 
suppose, at first blush, that the remedy is an obvious one, and lies in 
increasing the number of Examiners. This method of meeting the 
difficulty has been applied, until it has tumbled down by its own 
weight. The Patent Office, sixty years ago, started with one 
Examiner. The number has been from time to time increased, until 
these primary Examiners and assistant Examiners are numbered by 
scores. Each primary Examiner is practically independent of all 
the others. Each has his own idea of what does, or does not, con- 
stitute patentable novelty. Each has his own favorite forms and 
formulas of expression. Each his own special knowledge, or the 
relative want of it, concerning judicial decisions bearing upon the 
validity of patents ; and each may have his own special degree of 
inherent reluctance to following any decision of the Commissioner 
which contravenes an old defect of practice, and each his own, often 
unconscious, tendency to find reasons for evading or disregarding 
an interpretation of law or practice which is not coincident with his 
own ideas. A degree of novelty and utility which satisfies one 
Examiner of the patentability of inventions, may utterly fail to con- 
vince another. There is thus very little uniformity in the ideas of 
the different divisions of the Patent Office. 

The Keynote to Reform. 

The first requisite to justice is that there should be a definite and 
fixed standard by which it may be tested and accorded. In the 
existing condition of the Patent Office, such a standard as concerns 
questions of patentable novelty is but remotely approximated. To 
increase the number of Examiners having the present powers, would 
be to simply aggravate a state of affairs which is even now in need 
of speedy and drastic amelioration. With a different and improved 
method of examining applications, the examining force could be 
materially and advantageously increased. 

If, sixty years ago, the law, instead of instituting official Examina- 
tions, had provided for the printing and dissemination of all 



—15— 

patents as soon as issued, and left every inventor to investigate the 
prior state of the art for himself, with liberty to take a patent at his 
own option and risk, as is done in some European countries, the 
result would probably have been more satisfactory to inventors, and 
of more benefit to the public, than the plan that was adopted and 
still continues in force. It is now, however, quite too late in this 
country to do away with the Examination of applications antece- 
dent to the issue of patents. To do so would insure a practical 
illustration of the parable of the wheat and the tares. The destruc- 
tion of the evil would destroy the good. It is true that a prelimi- 
nary examination could be made and recorded in connection with 
the application, leaving the inventor to take the patent if he chose, 
with the Report of the prior state of the act on file as a notification 
to the public to qualify any undue breadth in the apparent scope of 
the patent. One objection to this would be, that it would destroy the 
presumption of novelty which arises under the present system, and 
which should, if possible, be preserved. While it would simplify the 
procedure and obviate many defects, it would not itself be free from 
many drawbacks. It will, in fact, be difficult to frame a practicable 
plan for doing way entirely with a quasi-judicial determination of 
an applicant's rights prior to the issue of a patent to him. Apart 
from the fact that patents issued without responsible scrutiny would 
be likely to be broadened beyond legitimate limits, and thus impinge 
upon public welfare, it is not to be forgotten that the prestige 
afforded by a governmental Examination affords an additional and 
substantial money value to a patent, by the presumption of novelty 
which il prima facie affords. 

The purpose of any system of Examination is to find, in any 
given case, the precise line which divides what is new and useful, on 
the one hand, from what is old and useless on the other. If a 
patent depart from this line in one direction, the inventor is deprived 
of that to which legally and morally he is entitled. If error is made 
in the opposite direction, the public is deprived of that which has 
already belonged to it and ought not to be taken away. The falli- 
bility of all human agencies will no doubt prevent the attainment of 
any means for actually ascertaining the proper line of demarcation 
in all cases, but, as compared with the present practice, very moder- 
ate and logical changes may very easily work a most decided 
improvement. 



—10— 

The general character of those modifications, which would inevit- 
ably bring about a change for the better, are so obvious that they 
were advocated by high authority, — that of the Commissioner already 
quoted in these pages, — at a time when the need of them was far 
less than it is now. A quarter of a century ago the Commissioner 
brought to the notice of Congress a plan of reform which, with 
modifications in some important respects, goes more directly to the 
root of the difficulty, and promises more immediate results, with less 
expense and less departure from established routine, than any other 
which has been proposed since the origin of the Patent Office. 

The fault of the present system is i/iat in many cases it practically 
nullifies the direct and only object of the patent law. This was forcibly 
set forth, in the report referred to, in these cogent words : 

'' The theory of the American system is to grant only valid patents, 
and at a cost so small as to make them obtainable by inventors of 
very small income. Many inventions, which at first appear very 
trivial, turn out to be of great value, and others, which at first excite 
hopes of great value, prove upon trial to be utterly worthless ; un- 
doubtedly very many patents are issued upon inventions having no 
value to the inventor or anyone else : but experience has shown 
that such patents do no harm. The theory of our system requires a 
thorough expert examination before a patent is issued, and a final 
rejection of all applications that do not present proper matter for 
valid patents. Many applications embracing important and valu- 
able inventions are accompanied by faulty descriptions, and' by 
claims much broader than the invention — so broad as to invade 
patents granted to others, and often to cover what is already well 
known to the public. It is the duty of the Office to ascertain just 
what is new and useful in the applicant's invention, and then to 
limit the description and claims to that of which he is really the 
first inventor." 

Having thus stated what a patent ought to be, the same Commis- 
sioner proceeded to say why and wherefore it is difficult to make it 
so. He said : 

" Our present system is defective in this : The applicants and 
their attorneys have direct access to the Examiners. The Examiners 
determine all questions of fact and of law, and pass cases for issue 
or reject them. Practically there is no review of their decisions, 
except as appeals are taken in rejected cases. From their decisions 



-17- 

in passing cases for issue, the proceedings being ex parte^ there is no 
appeal. The result is, many bad and interfering patents are issued, 
inventors and manufacturers too often are put to great and needless 
expense to determine their rights, the public confidence in the Office 
is diminished, and the validity of all patents issued is suspected." 

The system which the head of the Patent Office condemned in 
these stringent terms a quarter of a century ago, is, as has been 
already said, that which is still in force in the Patent Office. 

In continuation of the paragraph just quoted, this same Commis- 
sioner of Patents said : 

/''To remedy this ^ I suggest that all authority to pass for issue or 
/reject, be taken away from the Examiners j that « they be liinited 
K^xclusively to the duty of making examinations.'' 

This is the true keynote to all reform in the Patent Office. The 
reasons for it were sharply defined by the same authority in another 
paragraph of the same Report. He said : 

" To examine, for instance, an application for a patent on an 
improvement in power-looms requires the services of a man who has 
made power-looms a special study, and is thoroughly familiar with 
all their perplexing intricacies and thousand forms. To obtain this 
knowledge requires peculiar taste, close observation, and laborious 
study. 

" To judge correctly of the legal bearing of the facts developed 
by the examination of such an expert, to correct errors of Statement, 
description, and form, and to determine the intricate legal questions 
of patentability, abandonment, laches, etc., calls for legal and 
judicial ability, and requires different studies and differeiit qualifications. 

" The two offices can be, and I think should be, separated. The 
Examiner should be just what his title imports, an Examiner,^ while 
the authority to determine legal questions^ and to decide as to allowing or 
rejecting applications., should be left to another tribunal. Thus, by 
requiring the action of two officers upon each application, each 
separated from the other, the most effective check to ignorance, 
carelessness, and improper influence is secured." 

As a matter of exactness in expression, substitute " two tribunals " 
for " two officers," and the argument is conclusive. To show the 
convenience with which the examination could be carried on by 
Examiners segregated from the quasi-judicial duties which now per- 
tain to them, the Commissioner said : 



—IS— 

" The records of the Patent Office show that about seven thousand 
five hundred different things become subjects of application for 
patents. These seventy-five hundred different subjects, according 
to their analogies, are thrown into one hundred and forty-five 
classes.* The one hundred and forty-five classes are assigned to 
the sixty-six different Examiners in such a manner as to throw 
classes most nearly analogous together, and at the same time divide 
the labor as equitably as possible. This arrangement enables each 
Examiner, if qualified for his place, to become a very competent 
expert in the classes assigned to him. These one hundred and 
forty-five classes, I find, can again be reassembled into nine differ- 
ent groups, and still retain in each group so close an analogy, as to 
make it exceedingly desirable that the classes thus associated should 
be grouped together in the actual work of making examinations." 

To this extent the views of the then Commissioner of Patents are 
sound and practically indisputable. They comprised facts which 
were forced upon his attention as soon as he came to the headship 
of the Patent Office, and he saw the facts and the necessities of the 
case with the clear vision and thoughtful appreciation of conceded 
ability. He was, however, new to the intricate details of practice 
within the Office, and his plan of executive machinery to rectify the 
mischiefs, which he so distinctly and correctly described, was defect- 
ive, especially in those portions which related to appeals, and these 
objections, which were then apparent, have been intensified by sub- 
sequent events. So far as I have quoted them, the value of his 
views has increased with the lapse of time, and constitute apparently 
the only really available basis for any change for the better in the 
organization and working of the Patent Office. 

Essentials of a Reformed System. 

Reform, in its methods, should ordinarily conform as nearly as 
possible to that which already exists. To utilize what is old, to 
secure to it a changed function or an increased convenience has, in 
executive administration, quite as much of merit as can properly be 
ascribed to absolutely original ideas. To secure efficiency to the 
work of Examiners, as such, it would be necessary to, first, take 

* These figures relate, of course, to the classification of twenty-four years ago. 
They have not diminished in the interval. 



—19— 

from them the labor and responsibility of deciding questions of 
patentable novelty upon the merits ; and, second, of strictly and 
more broadly enforcing the rule, already theoretically to some 
slight extent in force, that those references which are the closest to 
the subject-matter of an application should be cited. Under the 
existing system, a slip-shod examination may reveal an anticipation 
of a broad claim, without anticipating minor features and combina- 
tions clearly disclosed upon the face of the specification and draw- 
ings. Under these circumstances the applicant naturally amends 
his claim to cover narrower and more specific combinations. Fre- 
quently these are met by entirely new references, which, if they had 
been produced in the first instance, would have shown him the 
futility of further argument, and saved the Patent Office the trouble 
of repeated action. The rule should be made imperative that the 
Examiner should search, not only for all that may meet the claims^ but 
for whatever may meet the mechanism, composition of matter, proc- 
ess, or subject-matter, which is disclosed by the specification and 
drawing. Such a rule inflexibly carried into effect would tend 
to diminish rather than increase the labor of examination, and 
the inventor being informed of the whole state of the art so far 
as relevant to anything shoivn or described in his application, 
would be enabled to amend or change his specification and claims 
accordingly. 

Under a reformed system, therefore, the work of the Examiners, 
who could be more properly designated as searchers, would com- 
prise an exhaustive investigation to find whatever should militate 
against the grant of a patent upon anything disclosed \xi the specifica- 
tion and drawings. A formal statement, setting forth that it 
embraced the entire state of the art bearing upon the case, and 
specifying any objections which he might properly urge, should be 
made over his own signature by the searcher making this examina- 
tion. A copy of this report should be sent forthwith to the appli- 
cant or his authorized representative, and the original, with the 
application itself, filed before a separate tribunal constituted to con- 
sider whether, or to what extent, the results of the search should 
operate against the grant of the patent. As in many cases the 
claims would be, to a greater or less extent, anticipated, or the 
searcher's objections manifestly call for argument, the applicant 
should be allowed a definite time in which to file amendments and 



—20— 

arguments. These should be considered in connection with the 
searcher's objections, the prior state of the art as disclosed by the 
search, and the character of the original specification. By this 
means the tribunal charged with the duty of determining, upon all 
the facts and circumstances, the matter of patentability, would 
have the whole case before it in the compact and unembarrassed 
form most conducive to deliberate consideration and just con- 
clusions. 

This tribunal would most logically be constituted by the simple 
segregation of the Primary Examiners, and their restriction to the 
semi-judicial duty of determining questions of patentable novelty 
upon the facts and objections developed by the searchers ; and by 
separating the latter to the work of searching, and of stating objec- 
tions, where such appear, to the allowance of a patent upon the 
invention or any part thereof disclosed in the specification and 
drawings. By dividing the number of Primary Examiners among 
the nine (or other appropriate number) divisions, there would be 
provided to each of the latter a Board of Examiners with the duties 
mentioned, and the action of these would, in the nature of things, be 
far more temperate and judicious than has been found possible with 
Examiners each acting singly by himself and apart from either 
criticism or co-operation from or with the others. From the decisions 
of the Board of Examiners for each division, appeals could be taken 
to the Board of Examiners-in-Chief, in the same manner that they 
are now taken from actions of Primary Examiners. 

Practical Advantages of Refoi'in. 

There seems to be no reasonable doubt that the changes proposed 
Avould greatly promote the efficiency of the Patent Office in the work 
for which it was created. It would substitute uniformity of practice 
in the place of discord. It would utilize one kind and character of 
talent, the executive, in the work of searching; and another, the 
judicial, in that of determining, patentability upon facts clearly and 
definitely placed before it ; and would thus utilize both to the 
highest possible degree. It would obviate the mischiefs which, as 
shown by the former Commissioner of Patents, were manifest twenty 
odd years ago, and which are even more obvious and urgent at the 
present time. It would destroy much of the friction which now 



—21— 

attends the working of the patent system, and would annihilate the 
arbitrary authority (which is too great to be properly confided to any 
subordinate) that now inheres in each primary Examiner, and which, 
though in many instances exercised wisely and conscientiously, may, 
in the hands of an unscrupulous, careless, or incompetent Examiner 
be used to inflict irreparable injury upon deserving and innocent 
inventors, and result in denying rights to which, under the law, an 
applicant may be entitled. 

Whether any or many, or none or all, of such Examiners are now 
in the Patent Office is a question to which it is no part of the pur- 
pose of these pages to reply, but in this connection , there may be 
quoted from the Report of the Commissioner the emphatic and 
suggestive words on a like topic, as follows : 

" Errors of judgment and susceptibility to temptation are incident 
to human nature ; and, whatever may be the checks and guards 
their ugly forms will occasionally crop out in all positions of public 
or private trust." 

In conclusion : As the proposed changes, with all their manifest 
advantages, will not imperatively require an increase in the work- 
ing force of the Patent Office, and will not necessarily involve 
any additional expense, — as they will confide to the Assistant 
Examiners the work to which they have been accustomed, and will 
promote the Primary Examiners to the unembarrassed discharge^ 
under more favorable conditions, of the more elevated of the duties 
in which they have acquired experience, — it is difficult to perceive 
wherein reasonable objection can be made to the proposed reform. 
It is true that an obstinate conservatism may, and often does, hinder 
and delay changes the utility of which is manifest. It has been so 
more than once in the history of the Patent Office. For example,, 
during many years a model was required with each and every appli- 
cation. The average expense of these has been estimated at twenty- 
five dollars each, and this estimate is probably too low rather than 
too high. It was an onerous tax upon inventors and upon develop- 
ing and progressive industries. Probably not less than ten millions of 
dollars were thus uselessly taken from the pockets of inventors prior 
to the time when the requirement was abolished. Successive Com- 
missioners and a majority of Examiners held, year after year, that 
examinations could not be adequately conducted without models. 
Yet, during more than a dozen years past, models have been dis- 



—22— 

pensed with by the Patent Office. The examinations are more con- 
veniently made without them, and an attorney who would now 
insist upon sending a model with each case filed by him would be 
regarded as a nuisance, and would be promptly told to stop. The 
time may not be remote when, similarly, the present methods of 
examination and its concomitants will be regarded with wonder and 
surprise that they were permitted to remain so long. 



APPENDIX. 

SOME GENIAL COUNSEL AND ADVICE. 

What Ifivenfors Should Bear in Mind at the Start. 

The evolution of an invention follows a naturgil and definite 
course. This is so inevitable that it controls the routine of proof in 
all questions of alleged priority, whether in the courts or in the 
Patent Office. 

An invention implies in its essence the creation of something new 
and original. In any case, the query is likely to arise, When did this 
creation begin ? or as phrased in Patent Office parlance, " What was 
the date of the conception of the invention ? " 

Merely conceiving an invention, and stopping with that, cannot 
benefit the public, and consequently ought not to benefit the in- 
ventor. The law offers the inventor a patent with a view to a sub- 
sequent advantage to the public. Therefore, to entitle him to 
protection he must do more than think ; he must act. The first 
thing to do with an idea of a new improvement is to show it in 
some form, so that its nature may be made manifest to others. 
Where it can be graphically shown, the first and most natural means 
to this end is a simple sketch. When a sketch can only partially 
disclose the invention, or when, as with a process, it may not be 
capable of showing it at all, a written description is the obvious 
substitute. Such a sketch or drawing should always be dated. 
What was the date of your first sketch ? is an important question 
which is almost always asked of an inventor when the history of his 
improvement comes to the fore. 

While the unsupported testimony of one person may sometimes 
carry persuasive weight, it is always better when that testimony is 
supported by others, or by circumstances which confirm it. When 
did you first communicate your invention to others ? is a query 
asked quite as frequently as any other. The inventor should take 
an early opportunity of explaining his invention confidentially to 



—24:— 

one or more trusty acquaintances. This, ordinarily, is most con- 
veniently done by showing a sketch. The date is very frequently 
fixed in such cases by having the parties witness the sketch, and 
affixing the date in their own hand-writing. 

When the idea had been formulated into what the inventor 
believes to be a practically successful shape, he should either have 
careful drawings made, or should make a model. This shows in- 
tention to perfect the invention, and persistence in developing the 
idea. Means should be taken to record the date of the completion 
of the drawing, or model, as the case may be. In some cases a 
model may so nearly approach the character of a working machine, 
or a finished device, as to almost or even quite reach the character 
of a completed invention. 

The next and conclusive step is the "reduction to practice" ; in 
other words, the actual construction and operation of the machine or 
device, the actual using, in a practical way, of a method or process. 
This should be done under circumstances which admit of proof. 
Filing an application for a patent is substantially an equivalent for 
reduction to practice, unless the attendant circumstances are very 
unusual. A patent may be taken on an invention that has not been 
actually constructed, or used, or practically tested, provided that, as 
shown and described, the invention is capable of practical use. 
Patents are granted for the disclosure of improvements, and when an 
inventor, by filing an application, has disclosed an actually useful 
invention to the Patent Office, it should not be necessary that he 
shall have previously demonstrated its usefulness by putting it into 
operation. The course of an inventor should be determined by 
circumstances. If the invention is a simple one, or if he have 
excellent facilties for testing it, he should put the improvement to 
an experimental test before filing the application. Frequently in 
such cases further improvements and modifications are suggested, 
which may be incorporated in the same patent. When the expense 
of actual working may be considerable, when the inventor is con- 
vinced of the utility of the invention without subjecting it to actual 
use, or where he has any especial reason for haste, he may file his 
application forthwith, and put the invention into actual operation at 
a more convenient season. 

In cases of Interference in the Patent Office, an advantage lies 
with the application which has been filed first. The presumption is 



—25— 

in favor of the first comer, and the application which is filed latest 
has the burden of disproving or overcoming that presumption. 

In the case of interfering applications for patents, the question of 
diligence is of the highest importance. An inventor who is the 
first to conceive the invention, the first to make a sketch of it, and 
the first to disclose it to another, and yet dawdles and dallies and 
delays without strong and valid reasons for so doing, will be beaten 
by an adversary who had been diligent in pursuing the idea to a 
practical end, either by actual reduction to practice or by filing an 
application for a patent in which it is shown in useful and operative 
form. 

When an inventor believes that further improvement is necessary 
or desirable to bring his invention into operative condition, and yet 
wishes to shut off others in the meantime from getting a patent on 
the same idea, he may file a caveat. This does not, as is sometimes 
supposed, afford protection after the manner of a patent, but simply 
entitles an inventor, during a year after filing the caveat, to notice 
from the Patent Office in case another party files an application for 
a patent on the same invention. Upon receipt of such notice he 
must, to preserve his rights, file an application within a certain 
stated time and go into Interference with the other applicant. 
Caveats are very useful in exceptional cases, but they cannot take 
the place of formal applications for patents. Ordinarily, it is better 
to file an application for a patent in the first instance, unless the 
invention is in a very incomplete condition, or unless there are 
special reasons for delay and for further experiment. 

As a general rule, an inventor should carefully preserve everything 
that relates to the history of his invention. It takes but a few 
minutes to make a pencil sketch, and only a few seconds to mark its 
date upon it. Sketches, drawings, models, experimental machines 
and parts thereof, should be kept in such a manner that each may be 
positively and easily identified. Many inventors keep a regular 
record of their novel ideas, experiments, etc. This plan is a very 
advantageous one. It not only preserves the facts concerning 
inventions which become successful, but also causes many transitory 
ideas, which may contain the germs of profitable inventions, from 
being forgotten. 



—26— 

Why Inventors Should be Diligent. A Recent Decisioti. 

The statute forbids the issue of a patent upon an invention which 
has been in public use more than two years prior to the application. 
This has been generally understood to mean that an inventor may 
make, use, and sell the invention for any length of time, less than 
two years, before applying for a patent. This seems to the writer to 
be the true and (with all due respect for the Court) the " common- 
sense " view of the intent of the statute. However, a novel, or at 
least a different, interpretation of the law, has, as recently as January 
last, been taken by the U. S. Circuit Court, for the District of 
Nebraska, The suit in which this decision was rendered was 
brought upon a patent, the specification of which stated upon its face 
as follows : 

" The invention is in practical operation and on the market it con- 
siderable numbers, and the facts here stated with regard to its opera- 
tion are such as have been ascertained from commercial experience 
with it." 

In support of its conclusion the Court quoted from an opinion of 
the United States Supreme Court, as follows : 

" An abandonment of an invention to the public may be evinced 
by the conduct of the inventor at any time, even within the two years 
named in the law." 

The Court, after making this citation from the Superior Tribunal, 
continued : 

" It is clear that if made to appear that, before filing an applica- 
tion for a patent, the inventor had abandoned the invention to the 
public, the patent, if issued, will be held invalid. Upon the face of 
the patent now under consideration, it appears that, previous to the 
date of the filing of the application, the inventor had put the inven- 
tion into practical operation ; that a considerable number of mills 
embodying the improvement had been put upon the market for sale ; 
and that the facts recited in the application, as evidence of the value 
and usefulness of the combination, had been ascertained from com- 
mercial experience with it. These statements preclude the idea that 
the use made was experimental. The recitals show that the inven- 
tion or combination had been perfected so as to make it practical. 
Numbers of mills had been put upon the market, and upon the 
knowledge derived from this extensive commercial use, the patentees 



-27- 

relied for proof of the successful working of the combination. Cer- 
tainly, the facts thus stated by the applicant are strong evidence of 
abandonment. If an inventor, after perfecting his invention, places 
it upon the market in large or considerable numbers, and sells to all 
who desire to purchase, and continues to do so for months, without 
applying for a patent, no other conclusion can be drawn than that he 
does not intend to apply for a patent ; and he cannot be permitted, 
after having made public the knowledge of his invention, and 
induced many persons to purchase, to then conclude that the inven- 
tion may be worth patenting, and that he will debar the public from 
using the knowledge they have acquired from him, by>procuring the 
issuance of a patent." 

This language, forcible as it is, was coupled with a slender quali- 
fication, as follows : 

" It is well settled that delay in applying for a patent may be 
explained, and be excused, by reason of sickness or inability to fur- 
nish the means needed to procure a patent, and also a sale, or sales, 
may be made under circumstances which are not inconsistent with 
an intent to apply for a patent. Primarily, the defense of abandon- 
ment is based upon matters of fact, and each case will depend upon 
the facts proven therein ; the legal conclusions being that if, in fact, 
the inventor did abandon his invention to the public, then he cannot 
afterward obtain a valid patent therefor." 

The plain conclusion is, that while there may be cases in which 
manufacture, use, and sale on a commercial scale within the limit of 
two years prior to the application may be explained away, the prac- 
tice is an exceedingly dangerous one. That the use prior to applica- 
tion should not, in general, be permitted to reach commercial pro- 
portions, and that when the inventor has once satisfied himself by 
trial within the limits of experiment that his invention is a valuable 
one, the sooner he applies for his patent the better. 

Some General Rules that May he Observed with Advantage. 

As applications, in the vast majority of cases, are prepared, filed, 
and prosecuted through attorneys, it is unnecessary to here remark 
at length upon the essentials of a properly prepared case. 

There are, however, a few simple rules the uniform observance of 
which tend greatly to promote an inventor's welfare. Among 
them : 



—2S— 

Always carefully explain the invention tji detail to your patent 
agent or attorney. It is his business to put the inventor's ideas 
into legal and technical form. He cannot fully do this unless he 
fully understands the invention, its various uses, its modifications, if 
such there be, the difference between it and other inventions for 
a like purpose, so far as known to the inventor, and the advantages 
derived or expected from its use. 

Never sign a specification (nor anything else) until you have read 
it from beginning to end, and understand it thoroughly. Do not sign 
or execute applications in blank, /, <?., petition, power, and oath, with 
the idea that the specification may be subsequently supplied. 

In selecting an attorney seek one of approved experience and 
established repute. Act toward him with the same propriety and 
fairness that you, yourself, desire from those with whom you do 
business, and if at any time, after affording fair opportunity for 
explanation, you have reasonable cause to distrust either his integrity 
or his competence, close your relations with him and go somewhere 
else. An honorable attorney has no difficulty in keeping his record 
straight, for the file-wrapper and contents of every application show 
precisely what has been done, and when and how it has been done, 
at every step in the history of the case from the hour when it was 
originally filed. 

Remember that while you are justified in expecting that your 
attorney will prepare and push your application with skill, care, and 
discretion, you should also bear in mind that no attorney can work 
miracles. If an invention is actually anticipated by proper refer- 
ences, — prior inventions or devices previously known in the art, — the 
Patent Ofifice can have no legal right to allov; a patent upon it. In 
such cases the Examiner is in duty bound to reject your application, 
and your attorney has no right to insist that he do otherwise. The 
attorney may and should, and you should lend him your willing 
assistance in so doing, seek for sound distmctions between the refer- 
ences and the iuventio7i^ so that the claims may be amended to cover 
whatever you may be actually, entitled to, although it may not be as 
much as you originally expected. Many patents with narrow claims 
have proved to be of great financial value, although, obviously, when 
the invention is meritorious, the broader the claim the greater the 
value of the patent. 

It is well, also, to appreciate the fact that cases are of every-day 



-29— 

occurrence where the Patent Office is willing to allow claims that are 
not as broad as they should be. Ninety-nine times in a hundred it 
is easier to get a relatively narrow claim than a comparatively broad 
one ; and the difference between good attorneys and the other kind 
is that the former seek to find the precise line between what belongs 
to the applicant and what belongs to the public, and to establish the 
application accordingly. When, in the attorney's opinion, a rejec- 
tion, in whole or in part, is not warranted by the facts and the law 
applicable to the facts, it is for the inventor to decide whether he 
will submit to the Examiner's action or take an Appeal. In such 
cases an attorney may advise ; he cannot decide. It is for the 
inventor to determine. Of course an honorable attorney will use 
all proper means for securing the rights of his client without the 
expense, delay, and annoyance of an Appeal. But cases are of fre- 
quent occurrence wherein an Appeal is absolutely necessary to secure 
the allowance of claims to which the applicant is justly entitled, and 
which he ought to make strenuous efforts to secure. It is thus, unless 
the applicant has some special reason for doing differently, very 
greatly preferable, for many reasons, that he carry his case to the 
appellate tribunal — the Board of Examiners-in-Chief. Sometimes in 
the event of an adverse decision by the Board, an Appeal may with 
propriety be taken to the Commissioner in person, or even to the 
Courts. This, however, is seldom required except in cases of con- 
siderable doubt, although, of course, there are sometimes exceptional 
instances in which it is strongly advisable. 

Concerning Foreign Pateiits. 

The expediency of obtaining foreign patents is a question that 
often presents itself to inventors. It is an old saying that an inven- 
tion which is valuable in this country should be equally so in each of 
the principal countries of Europe. In general, this is so, although 
there are some exceptions. 

Most European countries have a shorter term for patents than the 
United States, and when an invention has been patented abroad, 
before the issue of a patent in this country, the latter expires with 
the former. Aside from very exceptional cases, therefore, it is not 
advisable to secure European patents before the issue of the patent 
here. On the other hand, the issue of an American patent ordinarily 
stands in the way of the validity of an European patent subsequently 



—30- 

applied for. To meet these conditions, the usual practice is to apply 
for tlie foreign patent on the same day that the American patent 
issues. In this way the precedence of one over the other is avoided, 
the advantages of this procedure being that the term of the American 
patent is not abbreviated, and the validity of the foreign patent is 
not placed in jeopardy. Secured in this manner foreign patents fre- 
quently afford most promising opportunities for advantageous 
investment. 

An invention which has proved a success in this country is always 
likely, for obvious reasons, to be received with more than ordinary 
favor abroad. The arts, industries, and manufactures of Great 
Britain, France, Germany, and Belgium, — the latter the workshop of 
Europe, — are so nearly identical with those of the United States, that 
an invention valuable in one should be equally so in each of the 
others. This is true to a certain extent of other countries of Europe 
and America. It also frequently occurs that improvements in some 
special industry will have an exceptional value in countries where 
the general run, so to speak, of inventions, find a comparatively 
moderate market. Any improvement in steel or iron manufacture is, 
ordinarily, desirable in Norway or Sweden ; in silk manufacture in 
Italy ; in wine manufacture in Spain and Portugal, etc. In like 
manner there are some classes of inventions so universal in their 
application']that patents upon them should be valuable anywhere in 
the world. Of late years this has been markedly the fact with 
improvements relating to electricity. 

Sofne Common-sense Suggestions. 

Be practical in your methods, and reasonable in your ambitions. 
Do not invent for the mere sake of inventing, and do not secure 
patents merely to see your name in the columns of the Official 
Gazette of the Patent Office. Invention is serious work, and should 
have a serious motive behind it. It consumes time and mental 
effort, and is, in fact, work, albeit a kind of work that has a good 
deal of intellectual luxury about it. Look for, and work for, sub- 
stantial success as the outcome of your efforts. Keep your eyes 
open to what comes before you, and make your mind receptive of 
new ideas. Look for defects and deficiencies in arts and industries 
and manufactures, with which you come in contact, and think out 
reasonable and logical means for their remedy. 



—31— 

If, as sometime occurs, you, as an inventor, find yourself at a dis- 
advantage in making money from your improvements, it may be 
advisable to seek and find some acute and honest man whose busi- 
ness abilities and experience may be fairly offset against the origina- 
tive and creative faculty which makes you an inventor. Accord 
him the same liberality in the use of your inventive skill that you 
expect from him in the use of his money, and with him go ahead 
with promptness, energy, and confidence in whatever your own 
unbiased and deliberate judgment has approved. There are, of 
course, many people, and many conditions, to which this advice will 
not apply, but that two heads are better than one has often been 
demonstrated, when one of them belonged to a man of genius who 
could invent, and the other to a man of talent who could master tlie 
intricacies and difficulties of business affairs. Do not lose courage 
under the usual and inevitable trials of an inventor's life, and do not 
throw away a good chance for a problematical possibility of a better 
one. Undertakings based upon patents have their risks. So have 
all other forms of human endeavor. But there is no reason to doubt 
that more and greater fortunes have been made, either directly or 
indirectly, from inventions than from any one other department of 
business enterprise based upon moderate investments of capital. 
Remember that improvement in every branch of production is pro- 
gressive ; that an invention which to-day may stand at the very head 
of an industr}' may to-morrow be superseded by one invented hun- 
dreds or thousands of miles away by some person of whom you have 
never heard. Such are the chances, and such the opportunities, 
afforded in the realm of invention, and in that realm, as in others of 
business effort, there is always room at the top — fortune, fame, and 
success, as the reward of persevering and well-directed thought and 
indomitable energy. 



FINIS. 



THE PATENT OFFICE 



i 



AND 



THE PROBLEM OF REFORM 



BY 



JAMES A. WHITNEY, LL. D., 

Counselor at Law. 



WITH AN APPENDIX OF PRACTICAL ADVICE TO 
INVENTORS AND PA TENTEES. 



iUM 



BY THE SAME AUTHOR 



In Preparation. 

Rights and Privileges of Manufacturers under 
State and National Trade Mark Laws. 



■ 



ISSUED FROM 

United States and Foreign Patent Agency Offices, Rooms 430 and 431, Temple Court, 
cor. Beekman and Nassau Streets, New York City. 



Applications for Patents in all countries where Patents are granted ; Registration of Trade Marks 

in all countries where Trade Marks are registered ; and all business in the United 

States Patent Office prosecuted with thoroughness and dispatch. 



N 




^^^^2?^^-2^ 



